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Book Review the Free Market and the Prison BOOK REVIEW THE FREE MARKET AND THE PRISON THE ILLUSION OF FREE MARKETS: PUNISHMENT AND THE MYTH OF NATURAL ORDER. By Bernard E. Harcourt. Cambridge, Mass.: Harvard University Press. 2011. Pp. 328. $29.95. Reviewed by James Q. Whitman∗ I. In the end, The Illusion of Free Markets is a disappointing book, but it certainly includes some striking observations. One of the most striking arrives a dozen or so pages before the conclusion. There Ber- nard Harcourt, professor of both law and political science at the Uni- versity of Chicago and a man who brings an inventive theoretical mind to all of his work, combines two figures: incarceration rates in a variety of Western countries, and number of beds in psychiatric insti- tutions in the same countries (pp. 221–31). As he shows, it is not just the case that the United States incarcerates at a spectacularly higher rate than any other advanced country; it is also the case that the United States has spectacularly fewer beds for the mentally ill (pp. 227–28). Moreover, he observes, the explosion in American incarcera- tion over the last generation has been directly paralleled by a decline in the institutionalization of the mentally ill (p. 224 fig.10.1). The im- plication is clear: American prisons house people who would be hospi- talized in other economically advanced democratic countries. There is nothing surprising about this finding (though as will be discussed later, Harcourt interprets it in a surprisingly callous and un- convincing way). Numerous studies have shown the scandalous preva- lence of mental illness in our prisons and jails, and among those who care about this scandal, it is commonplace that the American mentally ill end up in prison largely because the United States has lost the will, and the institutional capacity, to provide them with psychiatric care.1 Nevertheless, Harcourt’s comparative charts shed a stark light on America’s place in the world today. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Ford Foundation Professor of Comparative and Foreign Law, Yale University. 1 See, e.g., Human Rights Watch, Mental Illness, Human Rights and U.S. Prisons 1–3 (2009), available at http://www.hrw.org/sites/default/files/related_material/Human%20Rights%20Watch %20Statement%20for%20the%20Record_9_22_09.pdf; E. Fuller Torrey et al., More Mentally Ill Persons Are in Jails and Prisons than Hospitals: A Survey of the States 1–9 (2010), available at http://community.nicic.gov/cfsfile.ashx/__key/CommunityServer.Components.PostAttachments/00. 00.02.91.75/More-Mentally-Ill_5F00_2_5F00_3.pdf. 1212 2012] THE FREE MARKET AND THE PRISON 1213 Future historians of America will note that, early in the twenty- first century, our country was throwing the mentally ill into prison. This depressing datum is only one aspect of an imprisonment boom, dating back to the mid-1970s, that is without parallel in any other in- dustrialized country. Nothing like our mass incarceration has ever taken place in a contemporary liberal society. Harcourt summarizes the contemporary American state of affairs forcefully: After almost fifty years of relative stability in our prison populations, the inmate population skyrocketed nationwide beginning in the early 1970s, rising from fewer than 200,000 persons to more than 1.3 million in 2002 (or, if inmates held in local jails are included, to more than 2 million persons by 2002). In 2008, the United States reached a new milestone: it incarcerated more than 1 percent of its adult population — the highest rate in the world, five times the rate in England and twelve times the rate in Japan, the highest raw number in the world as well. These staggering numbers were even higher within discrete segments of the population. One in thirty men between the ages of 20 and 34 was incarcerated in 2008, and for African-American men in that age group, the number was one in nine . America ranks first among all industrialized nations in its rate of imprisonment — by an order of magnitude . The length of prison sentences in the United States is also astounding. (p. 198) America has become the home of mass incarceration. There is a historical irony in this development that should depress anyone who cares about our country: Europeans thought of America as a beacon of progress in the early nineteenth century precisely because of its enlightened practices of criminal punishment.2 Two centuries later, America has become a byword for harshness, and historians of the great American experiment in liberty will have to find some explana- tion for what happened. II. What, indeed, happened? Harcourt’s book offers one version of an answer that has been offered by a number of leading scholars in recent years. The American explosion in imprisonment, these scholars argue — not just Harcourt but leading figures like Professors Loïc ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 2 For the best-remembered text, see GUSTAVE DE BEAUMONT & ALEXIS DE TOCQUEVILLE, DU SYSTÈME PÉNITENTIAIRE AUX ÉTATS-UNIS ET DE SON APPLICATION EN FRANCE (1833), reprinted in ALEXIS DE TOCQUEVILLE, OEUVRES COMPLÈTES (M. Per- rot ed., 1984). For the larger European admiration for America in this period, see THOMAS NUTZ, STRAFANSTALT ALS BESSERUNGSMASCHINE: REFORMDISKURS UND GEFÄNGNISWISSENSCHAFT 1775–1848, at 242–43 (2001). 1214 HARVARD LAW REVIEW [Vol. 125:1212 Wacquant,3 Nicola Lacey,4 and Jonathan Simon5 — is the result of American society’s increasing embrace of free-market ideology over the last generation or so. High rates of imprisonment have appeared because we have abandoned policies of government intervention in fa- vor of market solutions. As Harcourt puts it, American criminal punishment is a case of “neoliberal penality” (p. 40). Now, this claim may sound at first like a fringe fantasy of the left wing. The alleged “freedom” of the market is really about mass impris- onment! That is certainly how Harcourt’s book has been received by, for example, the Wall Street Journal, which mocked it from the mo- ment advance copies appeared.6 So it is important to begin by insist- ing that there is more to Harcourt’s argument than anticapitalistic slo- ganeering. There is an entirely plausible prima facie case to be made for the idea that there is some link between a free-market orientation and high rates of imprisonment — a good enough case to trouble any- one who cares seriously about American public policy, and to interest anyone with an urge to solve social-scientific puzzles. The reign of market solutions in American policymaking dates to the same period as the incarceration boom: both are developments whose beginnings we can trace to the mid-1970s; and both accelerated in the 1980s and after, as Harcourt observes (pp. 202–08). Moreover, it is true, as Har- court insists, that the politics of small government and the politics of “tough on crime” have frequently operated in tandem, notably in the case of President Ronald Reagan (pp. 204–05), and more recently in the case of then-Member of Parliament David Cameron.7 The revolu- tion in economic policy and the revolution in penal policy have coin- cided, and at least some politicians have regarded them as going hand in hand. It is thus entirely natural for scholars to wonder whether they had anything to do with each other. It is also natural to note the paradox in the making of these two simultaneous policy revolutions. The revolution in favor of markets has been a revolution against intrusions by Big Government, while the penal revolution has brought about a massive growth of a sort of gov- ernment activity more dramatically intrusive than any other: ours is the age when, as Chief Judge Alex Kozinski and Misha Tseytlin put it ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 3 See LOÏC WACQUANT, PUNISHING THE POOR 1–3 (2009). 4 See NICOLA LACEY, THE PRISONERS’ DILEMMA 170–73 (2008). 5 See JONATHAN SIMON, GOVERNING THROUGH CRIME 159 (2007) (invoking the idea of “neoliberal” punishment). 6 See James Grant, Price and Punishment, WALL ST. J., Dec. 20, 2010, at A21, available at http://online.wsj.com/article/SB10001424052748704034804576026012320513404.html. 7 See, e.g., David Cameron, Member of Parliament, U.K., Address at the Conservative Party Annual Conference (Oct. 4, 2006), available at http://www.guardian.co.uk/politics/2006/oct/04/ conservatives2006.conservatives?INTCMP=SRCH. 2012] THE FREE MARKET AND THE PRISON 1215 in a Cato Institute publication, You’re (Probably) a Federal Criminal.8 Wacquant describes it as a time when the “Left hand” of government, the gentle hand of ameliorative social policy, has become less and less active, while the “Right hand,” the hard hand of punishment, has come into its own.9 Harcourt frames it as a challenge to American self- understanding: 71 percent of American respondents . favor the free-market economy as the very best system on which to base the future of the world and, at the very same time, live in a place that operates that world’s biggest, most ex- pensive, government-run, interventionist, prison system that incarcerates more than one out of every hundred adults in the country. (pp. 42–43) This is a paradox indeed. Why is the age when so many American politicians — on both the left and the right — have set out to constrict the state also the age when the state has come to weigh so heavily on such a large percentage of the American population? Is the “price” of preferring market solutions to government intervention an expanded penal state, as Harcourt suggests (pp. 31–32)? If there really is some demonstrable link between free-market policies and rising rates of in- carceration, that is a fact that should make many of us uneasy about some of our cherished political commitments. But is there any demonstrable link? Before evaluating Harcourt’s answer, it is important to review what other scholars have said.
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